Beveridge & Diamond has substantial experience with the federal wetlands program and analog state programs.

Capabilities 

Obtaining and defending permits from the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act (CWA) is a mainstay of the B&D's Wetlands practice. Our Wetlands team successfully develops both targeted general permitting strategies and complex individual permitting strategies for a range of projects and industrial activities across the country, securing crucial permits for clients in all major industries and the public sector.

Through this experience, we have cultivated extensive contacts with Army Corps regulators in numerous District and Regional offices. This combination of experience and strong working relationships with agency personnel enables us to efficiently navigate the Section 404 process, work collaboratively with the agency, and identify creative solutions to permitting and mitigation issues.

In addition, our wetlands lawyers have backgrounds in wetlands and ecological science, and have worked as wetlands consultants. They’re fluent in the languages of project developers, field staff, in-house lawyers, and the agencies in delineating CWA jurisdictional features, securing permits from the Army Corps, designing mitigation sites, and drafting National Environmental Policy Act (NEPA) documents on behalf of the Corps and federally-designated state agencies for wetlands permits.  Our clients therefore look to us at all stages of project development – from conceptual design to minimize impacts, to evaluating draft delineation reports, to developing defensible permit applications and supporting analyses, to defending permits against legal challenge.

Representative Matters

Bois d’Arc Lake. Following nearly a decade of permitting delays, vocal public opposition, and threats from the U.S. Environmental Protection Agency to exercise its CWA 404(c) veto authority to block the Army Corps from issuing a permit, the North Texas Municipal Water District engaged B&D to help it permit a 16,000-acre drinking water reservoir. The $1.6 billion Bois d’Arc Lake project, located in Fannin County, Texas, is the first new reservoir in Texas in nearly 30 years and will provide a critical new source of water to the rapidly growing population of residents north of Dallas. We helped the District develop and negotiate a successful new CWA 404 individual permitting and mitigation strategy, resolve disagreements between the Army Corps and EPA to avoid the threatened CWA Section 404(c) veto of the permit, develop a new NEPA environmental review strategy to withstand legal challenge from project opponents and coordinate with the District’s consultants and the Army Corps to implement that strategy on an expedited schedule and assist the government in building a comprehensive administrative record supporting the permit. This work culminated in the Army Corps issuing the CWA 404 individual permit, which is one of the largest issued by the Corps in the last 25 years – authorizing the inundation of over 5,800 acres of wetlands and 124 miles of streams, and requiring nearly 21,000 acres of mitigation to offset those impacts. Construction of the reservoir was completed on October 14, 2022.

Tappan Zee Bridge. B&D’s Wetlands team was engaged by the developers of the new Tappan Zee Bridge project near New York City to help secure CWA 404 permits, assist in the completion of the related NEPA and Endangered Species Act Section 7 consultation processes, and collaborate with the New York State Thruway Authority to successfully defend the project permits against threatened legal challenges. The bridge, officially known as the Governor Mario C. Cuomo Bridge, opened on September 10, 2018. 

Diamond Pipeline. B&D served as environmental counsel to the developers of the Diamond Pipeline — a $900 million, 440-mile crude oil pipeline extending from Cushing, Oklahoma to Memphis, Tennessee. B&D was retained to help resolve disagreements between the three separate U.S. Army Corps of Engineers Districts and three separate FWS field offices within the project footprint over the formal ESA Section 7 consultation being conducted on CWA Section 404 permits so that the project could be constructed on schedule. After meeting with FWS and Army Corps representatives, B&D developed a strategy that allowed the agencies to complete their consultation and the Army Corps could issue its permit verifications. Project construction commenced on time in 2016.

Kansas City Intermodal Facility. B&D served as regulatory and litigation counsel to BNSF in the permitting and defense of its new $250 million intermodal facility in Gardner, Kansas. In this capacity, we helped our client obtain its CWA 404 individual permit and ensure that the permit was supported by a defensible NEPA document. We then successfully defended the permit and NEPA document against challenges in federal district court and the Tenth Circuit. Hillsdale Envtl. v. U.S. Army Corps of Engineers, 702 F.3d 1156 (10th Cir. 2012).

Other Examples:

• Securing wetland permits for a number of cogeneration facilities in the Northeast.
• Representing and advising the owner and developer of a 188-acre property in Staten Island, New York, which is among the largest privately-owned, undeveloped parcels in New York City, a former major oil storage facility and is the subject of a consent order governing the site’s remediation and the preservation of wetlands on the site, on matters relating to the environmental impact review of potential development proposals, construction of road transportation corridors and facilities, wetlands permitting and compliance, and management of materials under beneficial use determinations, and assisting in communications and negotiations with private stakeholders and state and federal governmental authorities.
• Serving as lead regulatory counsel on federal 404/10 permit and New York State siting and environmental permits for 6-mile submarine electric cable system, including management of specific agency concerns regarding sediment resuspension, benthic communities, and navigation.
• Co-authoring a U.S. Supreme Court-cited amicus brief on behalf of national real estate and development associations in the controversial wetlands regulation case Rapanos v. United States, 547 U.S. 715, 126 S. Ct. 2208 (2006).
• Representing upstream and midstream companies in evaluating CWA jurisdictional and permitting impacts on waters and wetlands.
• Negotiating a Supplemental Environmental Project for the Sewerage and Water Board of New Orleans, which restored wetlands at the historic Lincoln Beach and removed unsightly white goods in the Ninth Ward neighborhood.
• Representing a Columbia River port in a complex land and water property development project challenged by a citizen’s group in an area containing wetlands and ESA-listed and state-protected species, including the development of NEPA and Washington State Environmental Policy Act analyses.
• Representing a Pacific Northwest county in permitting, enforcement, litigation (including a CWA citizen suit), and negotiating Supplemental Environmental Projects arising from the construction of a 60-mile natural gas pipeline with almost 200 jurisdictional water and wetlands crossings, many of which were through habitat for ESA-listed salmonids.
• Representing midstream oil and gas companies on a range of environmental issues relating to pipeline siting, including identifying NEPA strategies, coordinating ESA compliance, evaluating CWA jurisdiction and permitting impacts to waters and wetlands, and coordinating with federal and state agencies to obtain all necessary permits and authorizations.
• Working with a client on wetland regulatory and permitting issues pertaining to a harbor development project in New York City.